Inside Criminal Justice

What is a Rape?

After years of complaints from police and advocates alike, the FBI is now seriously considering changing how it defines rape.

For nearly a decade, Carol Tracy, the executive director of the Women’s Law Project, has been agitating for a change in what she describes as the FBI’s “archaic” definition of rape.

This month, the agency made a major step forward to doing just that.

At a meeting in Washington last Friday, members of the Police Executive Research Forum (PERF), including representatives from police agencies in Chicago, Baltimore and Philadelphia, came together with FBI officials and victims’ advocates to discuss the importance of broadening the definition of a crime that most experts believe is significantly underestimated by the FBI’s Uniform Crime Report (UCR).

Currently, the only sexual assault the UCR collects data on is “forcible rape,” which it defines as “the carnal knowledge of a female forcibly and against her will.” Because “carnal knowledge” is defined as penetration of the penis into the vagina, the definition excludes oral and anal rape, as well as assaults with foreign objects. It also excludes male rape.

When Tracy spoke with The Crime Report last summer about the difficulties involved in prosecuting sex crimes, she was frustrated and disheartened at the lack of progress on changing the 80-year-old definition.

In the wake of bombshell reports about thousands of unexamined rape kits languishing in police storage and several recent investigative series, including ones by the Baltimore Sun and the New Orleans Times-Picayune that indicated police often downgrade reports of sexual assault, Tracy said she believed that part of the reason departments weren’t taking these crimes seriously was because national bodies like PERF and the FBI were not showing proper leadership on the subject.

“I actually think we’re losing ground,” she said.

But the future now looks a little brighter.

“There was a clear consensus at the meeting that the UCR definition had to change,” says Tracy, who attended the closed meeting at the invitation of PERF.

Though the proposed change must still go through a working group in October and an advisory group in December, Tracy is hopeful that the momentum is finally on her side.

According to Gregory Scarbro, unit chief of the FBI UCR program, the impetus to reexamine the rape definition came in early 2010 when the agency received a letter from Tracy requesting they look at the issue.

Since then, Scarbro says his office has been discussing the “antiquated” definition with the Department of Justice, the Office on Violence Against Women, and the Office of the Vice President, and working on ways to change local reporting systems to collect the data differently.

“There’s a lot of work to do,” Scarbro told The Crime Report. “We’ll need new forms, people will need to be trained, and there’s no money for it. We know we need to do it—it’s just about getting everything in place to get it done right.”

Scarbro says he hopes to walk out of next month’s working group meeting with a new mechanism that will allow the agency to collect a wider range of data on sexual assault.

Part of the reason this can happen is that police agencies, who the FBI relies on to report to the UCR, are coming aboard. A recent PERF survey found that 80 percent of the more than 300 responding police agencies did not believe the FBI definition of rape was adequate.

According to PERF’s director of communications, Craig Fischer, the push within PERF to change the definition was spearheaded by Philadelphia Police Commissioner Charles Ramsey, who testified with Tracy in September 2010 before the Senate Subcommittee on Crime and Drugs about underreporting of rape.

Ramsey was unavailable for comment yesterday.

Statistics on the crime of “forcible rape” collected by the UCR have historically been significantly lower than other counts, including the Bureau of Justice Statistics’ National Crime Victimization Survey. For example, in 2009 the UCR reported just over 88,000 rapes, while the NCVS counted more than 200,000 sexual assaults or attempted sexual assaults.

Part of the reason for the disparate numbers is that UCR records only crimes reported to police (and most experts believe fewer than 50 percent of sexual assaults are actually reported) and voluntarily reported to the FBI. The NCVS, on the other hand, collects data on victimization, regardless of whether the crime was reported.

But the difference also lies in the theory and attitude behind the NCVS survey, which collects data on several kinds of sexual assault, including attempted rape (of a man or woman) and unwanted sexual contact that may nor may not include force.

“We look at the broader scope of victimization,” explains Jennifer Truman, a statistician with the Bureau of Justice Statistics.

And this, says Carol Tracy, is exactly the point.

Police, she believes, should be investigating more seriously all sexual assaults, including those involving intoxicated victims and victims who work as prostitutes, because “there are serial offenders out there” and information gleaned from these crimes that police “don’t always take seriously” can help get these people off the streets. Tracy points to a case in Cleveland where police failed to properly test a rape kit that could have led them to Anthony Sowell—who was recently convicted of killing 11 women and burying them around his home.

This police attitude toward certain kinds of sexual assaults may contribute to low reporting rates. Although the reasons for not reporting an assault or attempted assault are manifold—from shame, to fear, to trauma-induced memory loss—many believe that part of the problem is law enforcement’s focus on investigating the victim’s behavior prior to and during the assault —instead of the perpetrator’s.

Some departments have even been found to routinely downgrade and re-classify rapes as non-crimes. This attitude can scare off already traumatized victims who know that they will have to endure an invasive rape kit as well as questions about their sexual past as part of an investigation.

All these issues, says Tracy, were discussed last Friday. And although the process is far from over, she believes a shift in police paradigm is on the horizon.

“I really feel like police are getting it,” she says. “We may have been preaching to the choir [at the Friday meeting] because everyone there chose to come to a meeting on this subject—but there were a lot of them.”

Julia Dahl is deputy managing editor of The Crime Report. She welcomes comments from readers.